BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 888
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          Date of Hearing:   June 15, 2010

                            ASSEMBLY COMMITTEE ON HEALTH
                              William W. Monning, Chair
                       SB 888 (Yee) - As Amended:  May 18, 2010

           SENATE VOTE :  32-0
           
          SUBJECT  :  Food safety: Asian rice based noodles.

           SUMMARY  :  Requires manufacturers of Asian rice based noodles and  
          Korean rice cakes to include a label on the product package  
          indicating the date of manufacture and appropriate time for  
          consumption, as specified, and permits a food facility to sell  
          Asian rice based noodles that have been kept at room temperature  
          for no more than four hours.  Specifically,  this bill  :  

          1)Directs all manufacturers of Asian rice based noodles to place  
            a label on the product packaging that indicates the time and  
            date of manufacture and includes a statement that the noodles  
            are perishable and must be consumed within four hours of  
            manufacture.

          2)Directs all manufacturers of Korean rice cakes to place a  
            label issued by the Korean Rice Cake Association Corporation  
            on the Korean rice cake that indicates the date of manufacture  
            and includes a statement that the rice cake must be consumed  
            within one day of manufacture.

          3)Allows a food facility to sell Asian rice based noodles that  
            have been kept at room temperature for a maximum of four hours  
            if permitted by federal law.

          4)Requires Asian rice based noodles kept at room temperature to  
            be consumed, cooked, or destroyed in a manner approved by the  
            local enforcement agency within four hours of manufacture.

          5)Specifies that Asian rice based noodles kept at room  
            temperature for more than four hours must be destroyed at the  
            end of the operating day in a manner approved by the local  
            enforcement agency.

          6)Defines Asian rice based noodles and Korean rice cakes for  
            purposes of this bill.  









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           EXISTING LAW  :

          1)Establishes the Sherman Food, Drug, and Cosmetic Law,  
            administered by the Department of Public Health (DPH), to  
            regulate the contents, packaging, labeling, and advertising of  
            food, drugs, and cosmetics. 

          2)Establishes the California Retail Food Code (CRFC), which  
            governs all aspects of retail food safety and sanitation in  
            California.

          3)Requires DPH to adopt regulations to implement and administer  
            CRFC and makes local environmental health departments the  
            primary enforcement agencies responsible for enforcing CRFC  
            through food safety inspection programs.

          4)Authorizes local enforcement agencies to inspect food  
            facilities, issue and suspend permits, conduct hearings, take  
            samples or other evidence, impound food or equipment, and  
            issue inspection reports.

          5)Defines a retail food facility to mean an operation that  
            stores, prepares, packages, serves, vends, or otherwise  
            provides food for human consumption at the retail level.  

          6)Defines potentially hazardous food (PHF) as a food that  
            requires time or temperature control to limit pathogenic  
            micro-organism growth or toxin formation.  Excludes from the  
            definition foods that have a pH level of 4.6 or below, foods  
            that have a water activity (Aw) value of 0.85 or less,  
            commercially processed food products in unopened hermetically  
            sealed containers, or food that has been shown by appropriate  
            microbial challenge studies approved by the local enforcement  
            agency not to support the rapid and progressive growth of  
            infectious or toxigenic microorganisms as specified.

          7)Requires specified PHF to be held at or below 41 degrees  
            Fahrenheit, or kept at or above 135 degrees Fahrenheit at all  
            times.  Allows certain PHF to be held for up to four hours  
            without having to be temperature controlled.

           FISCAL EFFECT  :   According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.

           COMMENTS  :   








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           1)PURPOSE OF THIS BILL  .  The author asserts that California  
            Asian rice based noodlemakers have been shutting their doors  
            and eliminating jobs because of a questionable interpretation  
            of current law that requires these noodles, long considered a  
            staple of Asian cuisine, to be refrigerated rather than  
            maintained at room temperature, which is current industry  
            practice.  The author notes that current law requires certain  
            foods to be held at or below 41 degrees Fahrenheit for  
            refrigeration or kept at or above 135 degrees after cooking.   
            The author argues that this requirement should not apply to  
            Asian rice based noodles because they are meant to be kept at  
            room temperature for up to four hours, and any change in  
            production would change a standard used by Asian communities  
            for thousands of years.  This bill is intended to prohibit the  
            sale of these noodles unless the package is labeled with date  
            and time of manufacture and includes a warning to consumers  
            that the noodles must be consumed within four hours of  
            manufacture.

           2)BACKGROUND  .  This bill defines an Asian rice based noodle as a  
            confection containing rice powder, water, wheat starch, and  
            vegetable cooking oil that cannot include any animal fats or  
            any other products derived from animals.  The preparation of  
            an Asian rice based noodle is by a traditional method that  
            includes cooking by steam at a minimum of 130 degrees  
            Fahrenheit for at least four minutes.  The noodles are usually  
            made from dough of finely ground rice and water and are  
            grayish-white in color.  They are available in two distinct  
            forms, rice stick noodles, which are thin and thread-like, and  
            broad rice stick noodles, which are flat and ribbon-like.   
            Asian rice based noodles are commonly used in soups and  
            stir-fry dishes throughout Asia including China, Indonesia,  
            Malaysia, Thailand, and Vietnam.

           3)STATE REGULATION OF PHF  .  The CRFC establishes uniform  
            statewide health and sanitation standards for food facilities  
            to ensure that food consumed by individuals is pure, safe, and  
            unadulterated.  Primary enforcement responsibility lies with  
            local health agencies.  If a food facility is found to be in  
            violation of the CRFC, the local enforcement officer is  
            authorized to impound food that is deemed or suspected to be  
            contaminated or adulterated.  The CRFC defines PHF as a food  
            that requires time or temperature control to limit the growth  
            of pathogenic micro-organisms or the formation of toxins that  








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            may cause food infections.  Food is excluded from this  
            definition if it has been shown by appropriate microbial  
            challenge studies, approved by the local county health  
            department, not to support the rapid and progressive growth of  
            infectious or toxigenic microorganisms that may cause food  
            infections.  Under the CRFC, if a facility only uses time as  
            the public health control for PHF, rather than both time and  
            temperature, then the facility is required to mark or  
            otherwise identify the food with an indication of the specific  
            time that is four hours past the point when the food has been  
            removed from temperature control; and, the food has to be  
            cooked and served, served if it is ready-to-eat, or discarded  
            within the initial four hour period after it is has been  
            removed from temperature control.

           4)PHF STUDY  .  Pursuant to AB 2214 (Tran), Chapter 160, Statutes  
            of 2006, DPH conducted a study of the sale and consumption of  
            three traditional Asian food items, Banh Tet, Banh Chung, and  
            Moon Cakes, after enforcement actions by local jurisdictions  
            to require refrigeration of these products resulted in  
            complaints from the manufacturers and the community that the  
            products became unpalatable after refrigeration.  The study  
            states many of the new and modified food products developed in  
            the U.S. each year meet California's statutory definition of  
            PHF.  According to the study, no regulatory agency has the  
            resources to conduct necessary safety studies on these  
            products that seek to be exempted from time and/or temperature  
            controls in current law that have been enacted to reduce the  
            public health risk to consumers.  The study adds that  
            anecdotal reports of these products not being associated with  
            an outbreak are not sufficient to circumvent existing  
            scientifically-based requirements and safety studies for time  
            and temperature control exemptions.  According to the study,  
            microbial challenge studies, which use accepted industry and  
            academic methods to introduce likely pathogens onto foods and  
            then monitor their ability to survive, grow, and/or produce  
            toxins at several points in time, are considered the gold  
            standard for assessing whether food products are classified as  
            PHF.  However, the entity contacted to conduct the study  
            mandated in AB 2214, the University of California Laboratory  
            for Research in Food Preservation, relied on established  
            microbiological models to estimate the ability of selected  
            pathogens and toxins to survive or grow in the three Asian  
            food items because a microbial challenge studies would have  
            required significant resources to complete and no funding was  








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            made available to support the study.  

           5)KOREAN RICE CAKES  .  According to the author, this bill is  
            modeled after AB 187 (Liu), Chapter 204, Statutes of 2001,  
            which allows food establishments to sell Korean rice cakes, as  
            defined, that have been at room temperature for less than 24  
            hours, and requires manufacturers of Korean rice cakes to  
            provide a date stamp indicating the date of manufacture and a  
            warning label that the rice cake must be consumed within one  
            day of manufacture.  At the time, the author argued that  
            forcing Korean rice cake bakers to refrigerate the rice cakes  
            after preparation made the cakes harden and therefore reduced  
            their marketability and desirability.  Laboratory work  
            provided by the author at the time found that the water  
            activity level of Korean rice cakes was either below or  
            marginally above the level of 0.85 or less, which currently  
            exempts food products from the definition of PHF.  Additional  
            background information prepared then by Irvine Analytical  
            Laboratories confirmed that 24 hours, which is the standard  
            time that Korean rice cakes are maintained at room  
            temperature, was not sufficient for the product to become  
            significantly contaminated.  

          6)PRIOR LEGISLATION  .  
           
             a)   AB 2214 establishes the Asian Traditional Food Act and  
               directs DPH to conduct a study on the effects of current  
               retail food safety and sanitation standards on the sale and  
               consumption of specified traditional Asian food.

             b)   AB 2763 (Diaz) of 2004 would have allowed temporary food  
               facilities to maintain sushi, teriyaki chicken, and  
               Japanese sweet cakes at room temperature for up to 24  
               hours, and would have required these foods to be labeled  
               with the time of manufacture.  AB 2763 failed passage in  
               the Senate Health and Human Services Committee.   

             c)   AB 187 allows retail food facilities to sell Korean rice  
               cakes that have been kept at room temperature for less than  
               24 hours and directs Korean rice cake manufacturers to  
               provide a date stamp indicating the date of manufacture and  
               a warning label that the rice cake must be consumed within  
               one day of manufacture.

           7)SUPPORT .  The City and County of San Francisco writes in  








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            support that Asian rice based noodles are frequently prepared  
            and consumed in San Francisco and the City has not experienced  
            any safety issue with the product locally.  Additionally, the  
            City and County notes that it does not treat rice noodles as a  
            hazardous food or require refrigeration for fresh noodles and  
            the normal cooking of rice noodles would also be expected to  
            limit the potential for hazards to people.  The California  
            Rice Industry Association states that it is critical that  
            regulations accurately reflect how ethnic foods have been  
            produced and consumed for centuries and allowing rice noodle  
            manufacturers to continue to safely produce and sell fresh  
            product is essential from a cultural standpoint and preserves  
            traditional cuisines that have become a part of California.   
            Numerous individual restaurants point out that current  
            interpretation of state law requiring refrigeration of the  
            noodles threatens this staple of Asian cuisine by changing the  
            texture of the noodles, making them stiff, and reducing  
            freshness.  Finally, the California Small Business Association  
            adds that this bill protects Asian small businesses that make  
            Asian rice based noodles while ensuring that the safe  
            production of this product is not at the expense of jobs and  
            misinterpretation of regulations and laws.   

           8)SUGGESTED TECHNICAL AMENDMENT  .  On page 3, line 23 and lines  
            27-28, before "enforcement agency" insert "local". 

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Rice Industry Association 
          California Small Business Association
          City and County of San Francisco
          Fat Family Restaurants (prior version)
          Koi Palace Restaurant (prior version)
          Lam Hoa Thuan Restaurant (prior version)
          Lucky K.T. Co Inc. (prior version)
          Organization of Chinese Americans, Inc., Silicon Valley Chapter  
          (prior version)
          San Francisco Department of Public Health (prior version)
          Sincere Orient Food Company (prior version)
          Southern California Teo Chew Association (prior version) 
          Yan Can Cook Production (prior version)
          Several individuals
           








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            Opposition 
           
          None on file.


           Analysis Prepared by  :    Cassie Rafanan / HEALTH / (916)  
          319-2097